Senate Bill sb1308c1

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    Florida Senate - 2005                           CS for SB 1308

    By the Committee on Regulated Industries





    580-1696-05

  1                      A bill to be entitled

  2         An act relating to the Florida Clean Indoor Air

  3         Act; amending s. 386.203, F.S.; defining the

  4         term "person" for purposes of the act; amending

  5         s. 386.204, F.S.; eliminating certain

  6         exceptions to the prohibition against smoking

  7         in an enclosed indoor workplace; prohibiting a

  8         proprietor or person in charge of an enclosed

  9         indoor workplace from permitting smoking in

10         that workplace; requiring that a proprietor or

11         person in charge of an enclosed indoor

12         workplace request a person who is smoking to

13         stop smoking or leave the premises; providing

14         penalties; amending ss. 386.2045 and 386.205,

15         F.S.; conforming cross-references; amending s.

16         386.206, F.S.; deleting certain provisions made

17         obsolete by operation of law which require the

18         posting of signs in an enclosed indoor

19         workplace; amending s. 386.208, F.S.;

20         authorizing a law enforcement officer to issue

21         a citation to a person who violates the Florida

22         Clean Indoor Air Act; providing requirements

23         for the citation; providing that failure to

24         comply with a citation is deemed a waiver of

25         the right to contest the citation; authorizing

26         a law enforcement officer to remove a person

27         from the premises who is in violation of the

28         Florida Clean Indoor Air Act; providing that

29         penalties imposed under the act do not limit

30         other actions by a law enforcement officer or

31         state agency; amending s. 561.695, F.S.;

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    Florida Senate - 2005                           CS for SB 1308
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 1         conforming cross-references; providing a

 2         penalty for a licensee who knowingly makes a

 3         false statement on an annual compliance

 4         affidavit; eliminating provisions requiring a

 5         stand-alone bar to certify to the Division of

 6         Alcoholic Beverages and Tobacco of the

 7         Department of Business and Professional

 8         Regulation compliance with certain provisions

 9         of the Florida Clean Indoor Air Act; providing

10         additional penalties for a third or subsequent

11         violation of requirements applicable to a

12         stand-alone bar; providing an effective date.

13  

14  Be It Enacted by the Legislature of the State of Florida:

15  

16         Section 1.  Subsection (5) of section 386.203, Florida

17  Statutes, is amended, present subsections (6) through (13) of

18  that section are redesignated as subsections (7) through (14),

19  respectively, and a new subsection (6) is added to that

20  section, to read:

21         386.203  Definitions.--As used in this part:

22         (5)(a)  "Enclosed indoor workplace" means any place

23  where one or more persons engages in work, and which place is

24  predominantly or totally bounded on all sides and above by

25  physical barriers, regardless of whether such barriers consist

26  of or include, without limitation, uncovered openings;

27  screened or otherwise partially covered openings; or open or

28  closed windows, jalousies, doors, or the like.  A place is

29  "predominantly" bounded by physical barriers during any time

30  when both of the following conditions exist:

31  

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    Florida Senate - 2005                           CS for SB 1308
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 1         1.(a)  It is more than 50 percent covered from above by

 2  a physical barrier that excludes rain;, and

 3         2.(b)  More than 50 percent of the combined surface

 4  area of its sides is covered by closed physical barriers.  In

 5  calculating the percentage of side surface area covered by

 6  closed physical barriers, all solid surfaces that block air

 7  flow, except railings, must be considered as closed physical

 8  barriers.  This section applies to all such enclosed indoor

 9  workplaces and enclosed parts thereof without regard to

10  whether work is occurring at any given time.

11         (b)(c)  The term does not include any facility owned or

12  leased by and used exclusively for noncommercial activities

13  performed by the members and guests of a membership

14  association, including social gatherings, meetings, dining,

15  and dances, if no person or persons are engaged in work as

16  defined in subsection (13) (12).

17         (6)  "Person" has the same meaning as in s. 1.01(3).

18         Section 2.  Section 386.204, Florida Statutes, is

19  amended to read:

20         386.204  Prohibition.--

21         (1)  A person may not smoke in an enclosed indoor

22  workplace, except as otherwise provided in s. 386.2045.

23         (2)  A proprietor or other person in charge of an

24  enclosed indoor workplace may not permit smoking in that

25  enclosed indoor workplace. If the proprietor or other person

26  in charge of an enclosed indoor workplace observes smoking in

27  that workplace or has been notified of observed smoking in

28  that workplace in violation of this part, the proprietor or

29  other person in charge of the enclosed indoor workplace shall

30  request the violator to stop smoking and, if the violator does

31  not comply, the proprietor or other person in charge of the

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    Florida Senate - 2005                           CS for SB 1308
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 1  enclosed indoor workplace shall require the violator to leave

 2  the premises. A proprietor or other person in charge of an

 3  enclosed indoor workplace who fails to comply with this

 4  subsection is subject to the procedures and penalties

 5  prescribed in ss. 386.207 and 561.695, as applicable.

 6         Section 3.  Subsections (2) and (4) of section

 7  386.2045, Florida Statutes, are amended to read:

 8         386.2045  Enclosed indoor workplaces; specific

 9  exceptions.--Notwithstanding s. 386.204, tobacco smoking may

10  be permitted in each of the following places:

11         (2)  RETAIL TOBACCO SHOP.--An enclosed indoor workplace

12  dedicated to or predominantly for the retail sale of tobacco,

13  tobacco products, and accessories for such products, as

14  defined in s. 386.203(9) s. 386.203(8).

15         (4)  STAND-ALONE BAR.--A business that meets the

16  definition of a stand-alone bar as defined in s. 386.203(12)

17  s. 386.203(11) and that otherwise complies with all applicable

18  provisions of the Beverage Law and this part.

19         Section 4.  Subsection (1) of section 386.205, Florida

20  Statutes, is amended to read:

21         386.205  Customs smoking rooms.--A customs smoking room

22  may be designated by the person in charge of an airport

23  in-transit lounge under the authority and control of the

24  Bureau of Customs and Border Protection of the United States

25  Department of Homeland Security. A customs smoking room may

26  only be designated in an airport in-transit lounge under the

27  authority and control of the Bureau of Customs and Border

28  Protection of the United States Department of Homeland

29  Security. A customs smoking room may not be designated in an

30  elevator, restroom, or any common area as defined by s.

31  

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    Florida Senate - 2005                           CS for SB 1308
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 1  386.203. Each customs smoking room must conform to the

 2  following requirements:

 3         (1)  Work, other than essential services defined in s.

 4  386.203(7) s. 386.203(6), must not be performed in the room at

 5  any given time.

 6         Section 5.  Section 386.206, Florida Statutes, is

 7  amended to read:

 8         386.206  Posting of signs; requiring policies.--

 9         (1)  The person in charge of an enclosed indoor

10  workplace that prior to adoption of s. 20, Art. X of the State

11  Constitution was required to post signs under the requirements

12  of this section must continue to conspicuously post, or cause

13  to be posted, signs stating that smoking is not permitted in

14  the enclosed indoor workplace. Each sign posted pursuant to

15  this section must have letters of reasonable size which can be

16  easily read. The color, design, and precise place of posting

17  of such signs shall be left to the discretion of the person in

18  charge of the premises.

19         (1)(2)  The proprietor or other person in charge of an

20  enclosed indoor workplace must develop and implement a policy

21  regarding the smoking prohibitions established in this part.

22  The policy may include, but is not limited to, procedures to

23  be taken when the proprietor or other person in charge

24  witnesses or is made aware of a violation of s. 386.204 in the

25  enclosed indoor workplace and must include a policy which

26  prohibits an employee from smoking in the enclosed indoor

27  workplace. In order to increase public awareness, the person

28  in charge of an enclosed indoor workplace may, at his or her

29  discretion, post "NO SMOKING" signs as deemed appropriate.

30         (2)(3)  The person in charge of an airport terminal

31  that includes a designated customs smoking room must

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    Florida Senate - 2005                           CS for SB 1308
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 1  conspicuously post, or cause to be posted, signs stating that

 2  no smoking is permitted except in the designated customs

 3  smoking room located in the customs area of the airport. Each

 4  sign posted pursuant to this section must have letters of

 5  reasonable size that can be easily read. The color, design,

 6  and precise locations at which such signs are posted shall be

 7  left to the discretion of the person in charge of the

 8  premises.

 9         (3)(4)  The proprietor or other person in charge of an

10  enclosed indoor workplace where a smoking cessation program,

11  medical research, or scientific research is conducted or

12  performed must conspicuously post, or cause to be posted,

13  signs stating that smoking is permitted for such purposes in

14  designated areas in the enclosed indoor workplace. Each sign

15  posted pursuant to this section must have letters of

16  reasonable size which can be easily read. The color, design,

17  and precise locations at which such signs are posted shall be

18  left to the discretion of the person in charge of the

19  premises.

20         (5)  The provisions of subsection (1) shall expire on

21  July 1, 2005.

22         Section 6.  Section 386.208, Florida Statutes, is

23  amended to read:

24         386.208  Penalties.--

25         (1)  Any person who violates s. 386.204 commits a

26  noncriminal violation as defined in s. 775.08(3), punishable

27  by a fine of not more than $100 for the first violation and

28  not more than $500 for each subsequent violation. Jurisdiction

29  shall be with the appropriate county court.

30         (2)  A law enforcement officer may issue a citation in

31  such form as prescribed by a county or municipality to any

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    Florida Senate - 2005                           CS for SB 1308
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 1  person who violates the provisions of this part. Any such

 2  citation must contain:

 3         (a)  The date and time of issuance.

 4         (b)  The name and address of the person cited.

 5         (c)  The date and time the civil infraction was

 6  committed.

 7         (d)  The statute violated.

 8         (e)  The facts constituting the violation.

 9         (f)  The name and authority of the law enforcement

10  officer.

11         (g)  The procedure for the person to follow in order to

12  pay the fine, contest the citation, or appear in court.

13         (h)  The applicable range of the fine for the

14  violation, which may not be more than $100 for a first

15  violation and not more than $500 for each subsequent

16  violation.

17         (3)  Any person who fails to comply with the directions

18  of the citation shall be deemed to have waived his or her

19  right to contest the citation and the court may issue an order

20  to show cause.

21         (4)  If a person who violates s. 386.204, or any

22  provision of this part, refuses to comply with the request of

23  the proprietor or other person in charge of an enclosed indoor

24  workplace to stop smoking or otherwise comply with the

25  provisions of this part, a law enforcement officer may remove

26  the violator from the premises.

27         (5)  This section does not limit any other action or

28  remedy that is available to a proprietor or other person in

29  charge of an enclosed indoor workplace and does not limit the

30  authority of a law enforcement officer, the department, or the

31  Division of Hotels and Restaurants and the Division of

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    Florida Senate - 2005                           CS for SB 1308
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 1  Alcoholic Beverages and Tobacco of the Department of Business

 2  and Professional Regulation to enforce the provisions of this

 3  part or any other rule, law, or ordinance.

 4         Section 7.  Subsections (1), (5), (6), (7), and (8) of

 5  section 561.695, Florida Statutes, are amended to read:

 6         561.695  Stand-alone bar enforcement; qualification;

 7  penalties.--

 8         (1)  The division shall designate as a stand-alone bar

 9  the licensed premises of a vendor that operates a business

10  that meets the definition of a stand-alone bar in s.

11  386.203(12) s. 386.203(11) upon receipt of the vendor's

12  election to permit tobacco smoking in the licensed premises.

13         (5)  After the initial designation, to continue to

14  qualify as a stand-alone bar the licensee must provide to the

15  division annually, on or before the licensee's annual renewal

16  date, an affidavit that certifies, with respect to the

17  preceding 12-month period, the following:

18         (a)  No more than 10 percent of the gross revenue of

19  the business is from the sale of food consumed on the licensed

20  premises as defined in s. 386.203(12) s. 386.203(11).

21         (b)  Other than customary bar snacks as defined by rule

22  of the division, the licensed vendor does not provide or serve

23  food to a person on the licensed premises without requiring

24  the person to pay a separately stated charge for food that

25  reasonably approximates the retail value of the food.

26         (c)  The licensed vendor conspicuously posts signs at

27  each entrance to the establishment stating that smoking is

28  permitted in the establishment.

29  

30  The division shall establish by rule the format of the

31  affidavit required by this subsection. A licensee who

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    Florida Senate - 2005                           CS for SB 1308
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 1  knowingly makes a false statement on this affidavit may be

 2  subject to revocation or suspension of his or her vendor's

 3  license under s. 561.29.

 4         (6)  Every third year after the initial designation, on

 5  or before the licensee's annual license renewal, the licensed

 6  vendor must additionally provide to the division an agreed

 7  upon procedures report in a format established by rule of the

 8  department from a Florida certified public accountant that

 9  attests to the licensee's compliance with the percentage

10  requirement of s. 386.203(11) for the preceding 36-month

11  period. Such report shall be admissible in any proceeding

12  pursuant to s. 120.57. This subsection does not apply to a

13  stand-alone bar if the only food provided by the business, or

14  in any other way present or brought onto the premises for

15  consumption by patrons, is limited to nonperishable snack food

16  items commercially prepackaged off the premises of the

17  stand-alone bar and served without additions or preparation;

18  except that a stand-alone bar may pop popcorn for consumption

19  on its premises, provided that the equipment used to pop the

20  popcorn is not used to prepare any other food for patrons.

21         (6)(7)  The Division of Alcoholic Beverages and Tobacco

22  shall have the power to enforce the provisions of part II of

23  chapter 386 and to audit a licensed vendor that operates a

24  business that meets the definition of a stand-alone bar as

25  provided in s. 386.203(12) s. 386.203(11) for compliance with

26  this section.

27         (7)(8)  Any licensed vendor that operates a business

28  that meets the definition of a stand-alone bar as provided in

29  s. 386.203(11) who violates the provisions of this section or

30  part II of chapter 386 shall be subject to the following

31  penalties:

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    Florida Senate - 2005                           CS for SB 1308
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 1         (a)  For the first violation, the vendor shall be

 2  subject to a warning or a fine of up to $500, or both;

 3         (b)  For the second violation within 2 years after the

 4  first violation, the vendor shall be subject to a fine of not

 5  less than $500 or more than $2,000;

 6         (c)  For the third or subsequent violation within 2

 7  years after the first violation, the vendor shall be subject

 8  to a fine of not less than $500 or more than $2,000, and any

 9  vendor that operates a business that meets the definition of a

10  stand-alone bar as provided in s. 386.203(12) shall receive a

11  suspension of the right to maintain a stand-alone bar in which

12  tobacco smoking is permitted, not to exceed 30 days, and shall

13  be subject to a fine of not less than $500 or more than

14  $2,000; and

15         (d)  For the fourth or subsequent violation, the vendor

16  shall be subject to a fine of not less than $500 or more than

17  $2,000, and any vendor that operates a business that meets the

18  definition of a stand-alone bar as provided in s. 386.203(12)

19  shall receive a 60-day suspension of the right to maintain a

20  stand-alone bar in which tobacco smoking is permitted and

21  shall be subject to a fine of not less than $500 or more than

22  $2,000 or revocation of the right to maintain a stand-alone

23  bar in which tobacco smoking is permitted.

24         Section 8.  This act shall take effect July 1, 2005.

25  

26          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
27                         Senate Bill 1308

28                                 

29  The committee substitute amends s. 561.695, F.S., to provide
    that an alcoholic beverage licensee is subject to revocation
30  or suspension of its alcoholic beverage license under s.
    561.29, F.S., if the vendor knowingly makes false statement on
31  the annual compliance affidavit.

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